BIM: The Professional and Legal Ramifications -
A Voyage into the Unknown
By: Michael K. De Chiara, Esq. and
Marianne Merritt Talbot, Esq.
The era of BIM (an acronym for
"Building Information Modeling") is
arriving. Although not yet a formal
part of the traditional design process, the
inexorable advance of technology is bringing
this dramatic design and construction tool
closer to daily reality. Industry experts have
opined that within 10 years, BIM will be
the principal construction delivery tool. The
GSA, for example, has stated that "for all
major projects (prospectus-level) receiving
design funding in Fiscal Year 2007 and
beyond, GSA will require spatial program
BIMs be the minimum requirements for
submission to OCA for Final Concept
approvals by the PBS Commissioner and
the Chief Architect." The GSA has also
articulated that it is "committed to a strategic
and incremental adoption of 3D-4DBIM
technologies." See www.gsa.gov. The
commitment of the GSA to BIM and the
desire of other owners to utilize it may ultimately
press design professionals into the
BIM future faster than expected.
WHAT IS BIM?
BIM, in its purest form, is a model-based technology that utilizes one database for all design and construction elements and processes. This single database could conceptually be accessed and utilized by dozens - and perhaps hundreds - of personnel during the life of a project. After the project has been completed, the database could be used by the owner of the building during the life of that structure.Design information from all disciplines are fed into the BIM database - from architectural designs and specifications to structural and mechanical systems information such as HVAC ducting, piping and structural slabs, columns and shearwalls. The database contains and connects all elements of a completed building to one main database of linked project information. Thus, for example, if a change were made to one element of the design, the sophisticated BIM database would automatically reconfigure all related elements embedded in the interrelated database. A BIM database will go well beyond the traditional use of 2-D modeling and will have the capacity to work in 3-D, 4-D (construction scheduling) and even 5-D (costflow analysis). The database could dramatically reduce waste in construction, including time delays caused by RFIs and change orders. It would also detect design errors and omissions in early stages of a project.
The proponents of BIM claim that it will seamlessly incorporate and integrate the input and flow of information between design and construction professionals. This, it is claimed, would naturally streamline the entire process, reducing delays and cost overruns. The potential of BIM is clearly immense, but at what risk? What precautions have to be taken when embarking upon a BIM project?
THE NEW BIM PARADIGM
BIM technology is already being utilized by some design professionals, including those working on the World Trade Center Freedom Tower. However, BIM technology today is largely being used in a non-collaborative manner, in which the models are designed solely in-house by one design team. The shift to a collective BIM database, accessible and utilized by the spectrum of design and construction professionals, raises a multitude of potential professional and legal issues that, at this early date, cannot be fully realized. However some issues that have been readily identified include:- How can design firms successfully transition
their professionals into using
BIM programs? When should this start
taking place?
- Will the use of BIM alter applicable
standards of care?
- Who will manage the model? Should different
professionals exchange management
responsibilities as the project progresses?
- Who will have access to the database?
Who will be responsible for managing
the data that is entered? How will
the database be protected from damage
from unauthorized access (from, for
example, sophisticated computer
hackers)?
- Can different BIM programs used by
various project parties be successfully
integrated?
- How can BIM utilizers accurately verify
information entered into the database?
Who will bear the risk in the event that
incorrect information is transmitted?
How will risk be assigned if the originator
of a particular item of information
cannot be determined?
- Who will own the information on the
database? Who will own the copyrights
to the database and the designs therein?
- How will the design process be resequenced?
Will this impact upon the areas
of responsibility for all participants?
- How will utilizing the BIM database
alter project communications between
design and construction professionals?
- What is the design team's obligation
for coordination when the BIM process
is fluid?
- What information must be exchanged by
parties in order to meet their respective
responsibilities?
- How will the "frontloading" of information
in the BIM process reflect upon
design professionals' compensation and
risk allocation?
- Do standard contracts (such as the AIA
standard contracts) sufficiently address
potential BIM-related exposure?
- Should risk be allocated across the entire
design and construction team, including
the owner who may have required the
use of BIM?
- Does the design professional's insurance
adequately cover potential BIM and
other technology-related exposures?
PROTECTING YOURSELF IN THE NEW BIM WORLD
Although BIM may ultimately save time and expense in design and construction processes, making it appealing to owners, issues such as those raised in the questions above must be adequately and fairly resolved in order to ensure that all professionals on such projects are protected and rewarded for their efforts. Not surprisingly, these protections will be overwhelmingly dependent upon the contract terms agreed upon between all parties to a project.At a minimum, design professionals must encourage their counsel to draft provisions which will place a realistic limit on their liability for any BIM-related issues, as well as all liability which may generally arise in the context of a professional's involvement in a project. While design professionals and their counsel should always fight for limitations of liability in their contracts, such limitations become critical in the context of BIM.
A second major issue which must be addressed by design professionals and their counsel is the ownership of the design. Regardless of the medium or the delivery method (conventional plans and specifications, or BIM), design professionals must be diligent in protecting their intellectual property. In a BIM environment, this becomes even more critical since there may be multiple parties claiming ownership of a portion of the final BIM generated product.
There are, of course, many other legal issues raised by BIM. Before entering into a BIM project, the design professional is strongly urged to seek out and retain qualified counsel to advise on all potential issues and draft appropriate contractual language.
Take the time to educate yourself about BIM, and take the necessary steps to secure necessary legal protections. In doing so, you, as well as your clients, may quickly reap BIM-related rewards and successfully propel yourself to the front of the cutting edge of design and construction.
